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District Court 25 March 2021

R v Col

[2021] NSWDC 89

DrugsFraud & dishonestyPublic order & justice offences
FRAUD AGGREGATE SENTENCE

Citation: R v Col [2021] NSWDC 89
Court: District Court of New South Wales
Date: 25 March 2021
Judge: Mahony SC DCJ

Background

The offender pleaded guilty to five counts arising from conduct between 6 April and 15 May 2019. The offences included dishonestly obtaining property by deception, supply of prohibited drugs on an ongoing basis, supply of a prohibited drug in quantities ranging from indictable to greater than large commercial, and knowingly dealing with proceeds of crime. A further supply offence was placed on a Form 1 to be taken into account on sentence.

The factual background involved the offender using a false identity (the name Nicholas Dodds) to obtain a vehicle on finance worth over $55,000, which was then sold. Police executing search warrants found quantities of methylamphetamine, gamma-butyrolactone (GBL), and heroin at the offender's premises, along with $10,000 in cash, drug paraphernalia, and equipment associated with identity fraud including a card printer and embossing machine.

The offender had an extensive prior criminal record dating to 2005, including previous convictions for drug supply, fraud-related offences, break and enter, and dealing with proceeds of crime. He had served terms of imprisonment on multiple prior occasions.

  • What sentence was appropriate across five distinct offences, covering fraud, drug supply at varying quantities, and proceeds of crime?
  • How should the sentencing court approach an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, particularly where offences span different types of criminality but form part of a continuous course of conduct?
  • To what extent should individual sentences be accumulated or made concurrent, having regard to the totality principle?

Decision

His Honour identified that the offending was serious and sustained, involving multiple drug supply transactions confirmed by telephone intercepts, substantial quantities of methylamphetamine and GBL, and a sophisticated fraud scheme using fabricated identity documents. The presence of cash, drug paraphernalia, and scales in close proximity to the drugs pointed to a commercial operation rather than personal use.

The court noted the offender's prior record as an aggravating factor, observing that he had been convicted of similar offences in the past and that prior custodial sentences had not deterred him. The guilty pleas were taken into account as a mitigating factor, as was time already spent in pre-sentence custody from the date of arrest on 15 May 2019.

In approaching the aggregate sentence, the court referred to established authority on the totality principle, including Postiglione v The Queen and Cahyadi v R, as well as the Court of Criminal Appeal decisions in Caristo v R, Imbornone v R, White v R, and R v Fidow. The court accepted that some accumulation was necessary because the offences represented an ongoing course of criminal conduct across distinct episodes, and running all sentences concurrently would not adequately reflect the full criminality involved.

His Honour imposed an aggregate sentence of 8 years and 4 months imprisonment, with a non-parole period of 6 years and 3 months, commencing from the date of arrest.

Orders Made

  • The offender was convicted of all five counts: dishonestly obtaining property by deception (s 192E(1)(a) Crimes Act 1900); supply prohibited drugs on an ongoing basis (s 25A(1) DMTA); supply prohibited drug greater than indictable and less than commercial quantity (s 25(1) DMTA); knowingly dealing with proceeds of crime (s 193B(2) Crimes Act 1900); and supply prohibited drug greater than large commercial quantity (s 25(2) DMTA).
  • An aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period: 6 years and 3 months imprisonment, commencing 15 May 2019 and terminating 14 August 2025.
  • Balance of term: 2 years and 1 month imprisonment, commencing 15 August 2025 and expiring 14 September 2027.
  • The Form 1 offence (supply prohibited drug, s 25(1) DMTA) attached to Count 2 was certified as taken into account.

Key Takeaways

  • The District Court confirmed that where multiple offences form part of an ongoing course of criminal conduct, some degree of accumulation of sentences is necessary to avoid an aggregate term that understates the total criminality involved.
  • Under the totality principle, a sentencing court must ensure that the overall sentence is neither crushing nor disproportionately lenient, and must look at the combined effect of any accumulation across separately charged offences.
  • Telephone intercept evidence, even without physical seizure of drugs, was accepted as sufficient to establish the fact of supply across three separate transactions.
  • An extensive prior record including previous convictions for analogous offending (drug supply, fraud, and proceeds of crime) operated as a significant aggravating factor, notwithstanding the mitigating weight given to guilty pleas.
  • Where a fraud offence involves fabricated identity documents used across multiple transactions, and drug supply offences occur in the same period, the court treated them as part of a connected but multi-faceted criminal enterprise warranting a substantial aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(a), 193B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 53A

Cases:
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Caristo v R [2011] NSWCCA 7
- Imbornone v R [2017] NSWCCA 144
- White v R [2016] NSWCCA 190
- R v Fidow [2004] NSWCCA 172